Citation Nr: 0325819
Decision Date: 10/01/03 Archive Date: 10/15/03
DOCKET NO. 95-40 378A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Entitlement to a compensable evaluation for residuals of
an incisional hernia, postoperative with revision scar.
2. Entitlement to a compensable evaluation for residuals of
an inguinal hernia, post operative with revision scar.
3. Entitlement to an increased evaluation for residuals of a
right hip injury with iliotibial band subluxation, currently
evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Counsel
INTRODUCTION
The veteran (appellant) served on active duty from September
1982 to July 1986 and from September 1988 to September 1991.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Atlanta,
Georgia. During the course of this appeal, the claim was
transferred to the RO in Muskogee, Oklahoma and that office
has current jurisdiction.
In a December 2002 statement, the veteran reported that she
experiences various disabilities due to her service-connected
pelvic inflammatory disease and pelvic adhesions,
postoperative total abdominal hysterectomy, and that her
service-connected back and hip problems have worsened. These
matters are referred to the RO for the proper action.
REMAND
In April 2002, the Board undertook additional development
with respect to the issues listed on the title page of this
action pursuant to authority granted by 67 Fed. Reg. 3099,
3104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2)
(2002)). The development actions requested by the Board have
been completed and have resulted in the acquisition of the
reports of June 2003 VA examinations and additional private
medical records. The record reflects that the veteran has
not been afforded the opportunity to review the additions to
the record pursuant to 38 C.F.R. § 20.903(b) (2002).
On May 1, 2003, the United States Court of Appeals for the
Federal Circuit, in Disabled American Veterans v. Secretary
of Veterans Affairs, No. 02-7304 (Fed. Cir. May 1, 2003)
(DAV), held that 38 C.F.R. § 19.9(a)(2) was invalid because,
in conjunction with the amended rule codified at
38 C.F.R. § 20.1304, it allowed the Board to consider
additional evidence without having to remand the case to the
RO for initial consideration, and without having to obtain
the appellant's waiver of the right to initial consideration
of the evidence by the RO. The Federal Circuit also held
that 38 C.F.R. § 19.9(a)(2)(ii) (requiring the Board "to
provide the notice required by 38 U.S.C. [§] 5103(a)" and
"not less than 30 days to respond to the notice") was invalid
because it was contrary to 38 U.S.C. § 5103(b), which
provides a claimant one year to submit evidence.
In the instant case, the veteran has not been provided the
option of having the additional evidence initially considered
by the RO, and thus has not waived her right to have the
newly acquired additional evidence considered initially by
the RO. A remand of the case is therefore required to comply
with DAV. In addition, the Board notes that the VA
orthopedic examination report dated in June 2003 appears to
be incomplete. Only one page has been associated with the
claims file, and that page ends with an incomplete sentence.
In view of the above, the case is hereby REMANDED to the RO
for the following action:
1. The RO must review the claims folder
and ensure that all notification and
development required for due process is
completed. The RO should ask the veteran
to provide information regarding all
medical treatment for the disabilities at
issue here that has not already been made
part of the record. The RO should assist
the veteran in obtaining evidence by
following the procedures set forth in
38 C.F.R. § 3.159 (2002). If records
sought are not obtained, the RO should
notify the veteran of the records that
were not obtained, explain the efforts
taken to obtain them, and describe
further action to be taken. The RO
should associate with the claims file the
complete reports for the veteran's
examinations conducted by VA in June
2003. Once obtained, all records must be
permanently associated with the claims
folder.
2. When the above development has been
completed, the RO should review the
record and ensure that the directives of
this remand are complied with in full.
The RO is advised that where the remand
orders of the Board are not complied
with, the Board errs as a matter of law
when it fails to ensure compliance, and
further remand will be mandated. Stegall
v. West, 11 Vet. App. 268 (1998).
3. Thereafter, the RO should review the
record and ensure that all development
actions have been conducted and completed
in full. If not, the RO should then
undertake any other action required to
comply with the notice and duty-to-assist
requirements. Then, the RO should re-
adjudicate the issues on appeal. If any
benefit sought remains denied, a
supplemental statement of the case (SSOC)
should be issued, and the veteran should
be afforded an opportunity to respond
before the case is returned to the Board
for further appellate review. The SSOC
must contain notice of all relevant
actions taken on the claim, including a
summary of the evidence received since
the issuance of the last SSOC, and
applicable law and regulations considered
pertinent to the issues currently on
appeal.
Thereafter, the case should be returned to the Board for
further appellate review, if
in order. By this remand, the Board intimates no opinion as
to any final outcome warranted. No action is required of the
veteran until she is notified by the RO. The veteran has the
right to submit additional evidence and argument on the
matters the Board has remanded to the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs
to provide expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
_________________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).